行政法上请求权的理论构造
徐以祥行政法上请求权的理论构造
Theory of Claimsin Administrative Law
期刊名称：《法学研究》
期刊年份：
作者：徐以祥
单位：西南政法大学经济法学院
中文关键词：公法请求权;公法权利;行政法上的请求权
英文关键词：public law;claims;administrative law
中文摘要：
公法请求权根源于并服务于基础性公法权利，但具备独立实体权利的要素，具有相对的独立性。确保或回复基础性公法权利不受干扰状态的干扰防御请求权和作为受益权核心内容的给付请求权是公法请求权的两种典型形态。公法请求权的确认和保护，对基础性公法权利的实现具有重要意义，只有实现对公法请求权的全面保护，方可实现对基础性公法权利的全面保护。我国应当通过立法和司法的革新措施促进公法请求权的行政法制保护，以提升公法权利的行政法保障水平：一方面，行政立法应当树立对公法请求权予以直接立法确认的理念；另一方面应通过行政诉讼制度的改革促进公法请求权的司法保护。
英文摘要：
The claim method is one of the most important methods in the analysis of civil rights. This method can be introduced into administrative law, as the service administration (Leistende Verwaltung) plays a more and more important role in the society. A public law claim (Anspruch) refers to a request of a specific action or non-action against specific legal subject in public law, which is supported by an underlying right. Although a claim is rooted in an underlying right and in the serve of the realization of the function of the underlying right, it is a kind of substantive rights, has the general characteristics of a subjective right, and is also a link between substantive public law and procedural public law. There are four types of typical public law claims, that is, claims based on rights to freedom and property, claims based on beneficial rights (social rights), claims based on rights to participation, and claims based on rights to equality. The norm basis of a public law claim can be a promise of an administrative agency, an administrative contract, a legal right which is stipulated in administrative norms, or the analogy of corresponding norms in civil law. A public law claim can also be traced back to a fundamental right in the constitution, if there are no specific legal norms to support this claim. The incorporation of public law claims in the legislations and the effective protection of public law claims in the judicial practice play significant roles in a leakless protection system of public law rights. In order to promote the protection of public law claims in China, legislators should incorporate claims in norms directly and clearly, so long as it is possible in the specific situations. In addition, administrative litigation system should be reformed to meet the needs of effective and leakless protection of public law claims, especially, the litigation to apply an administrative organ to perform its statutory duties should be reformed to be one which can provide leakless protection for public law claims.
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